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Thread: Use of Deadly Force in Virginia

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    Does anyone have a link or a description to the use of deadly force in Virginia (by a civilian)? I am only familiar with states like Texas, and was wondering how different the law was here in Virginia.

    For instance, I am assuming you do not have to provide any verbal warning before engaging (for instance, in the case of an armed--including knife, firearm or other weapon--assailant robbing a store), etc.

    I am sure this has been discussed before. Thanks.

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    Regular Member SouthernBoy's Avatar
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    Jim Thorpe wrote:
    Does anyone have a link or a description to the use of deadly force in Virginia (by a civilian)? I am only familiar with states like Texas, and was wondering how different the law was here in Virginia.

    For instance, I am assuming you do not have to provide any verbal warning before engaging (for instance, in the case of an armed--including knife, firearm or other weapon--assailant robbing a store), etc.

    I am sure this has been discussed before. Thanks.
    As a side note, does your handle have any actual relationship to the famous Jim Thorpe? The reason I ask is because my wife used to work for the ASA (Army Security Agency) at Arlington Hall Station. The man who hired her was Jim Thorpe's son (John Thorpe I believe).

    In the final seconds of your life, just before your killer is about to dispatch you to that great eternal darkness, what would you rather have in your hand? A cell phone or a gun?

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    Jim Thorpe wrote:
    Does anyone have a link or a description to the use of deadly force in Virginia (snip) I am sure this has been discussed before. Thanks.
    Boy, has it ever been discussed before

    Go here: http://www.virginia1774.org/Page5.htmland read the case law - what the courts have said as they interpret and apply the law as written by the General Assembly.

    After you get your fill there, feel free to pose specific questions so we can all talk about jury nullification and why we can never get on a jury to begin with.

    Seriously, some of us are real lawyers, some of us have stayed at a Holiday Inn Express, and some of us know what we are talking about some of the time. It will be your job to figure out who is which. You will do a lot of :shock:and and , as well as occasionally :celebrateas you read the "expertise" we share with you. The advice and discourse we provide is worth at least 3 times what you pay for it, and will be sure to help any lawyer you later consult to increase his billing for sorting out all the stuff we throw at your inquiry.

    Please update your profile to show where you are. It helps us in directing you to resources, among other things.

    stay safe.

    skidmark
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    This is a subject that should be near and dear to everyones heart! Especially us who carry a handgun whether it be in OC or CC mode!

    You may not know the "rules" verbatim, but you know them in laymen's terminology.

    I tried to find a site that broke it down to the everyday readers understanding. I tried to stay away from the sites reading out court verdicts and rulings when worded for the lawyers out there who need this specific style of information.

    I am sure the guru's on this site can recite the rules backward and forward, but what about the everyday member who has only a "Clue" as to what they are. May I suggest (If not already done as my eyes are not what they used to be) we make a "Sticky Topic" for this so it is always up front, on top for all too see. Again, just my suggestion and please forgive me if it is already there.

    If there are sites that cover this better than this one, no problem. My intent is to get the information out to the everyday member... Thanks for all of the Help and assistance!
    :celebrate
    Use of Deadly Force: http://www.useofforce.us/
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    Gunny

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    Gunny5821 wrote:
    This is a subject that should be near and dear to everyones heart! Especially us who carry a handgun whether it be in OC or CC mode!

    You may not know the "rules" verbatim, but you know them in laymen's terminology.
    Ah, but the devil is in the details!

    Agreed, reading court-/legalese is a pain at best, but knowing how those who will be passing judgement are going to be guided and thinking is IMHO a lot better than hoping and guessing blindly.

    Once you have the general idea of how & why the courts ruled the way they did, you can come back with more specific questions and we will try to hash it out. But without the foundation, it is difficult to build the case.

    stay safe.

    skidmark
    "He'll regret it to his dying day....if ever he lives that long."----The Quiet Man

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    Yes, although I am talking about even more clear cut cases.

    For instance, if you are in a convenience store in Virginia, and an assailant holds up the store while you are inside (with either a knife, firearm, or any other possible weapon), are you legally entitled to use deadly force? For instance, in this case engaging the assailant before any sort of verbal notification that you are armed.

    Texas law, for example, allows deadly force to stop a felony -- in the case I mentioned above, Texas law allows the use of deadly force regardless of whether that assailant has a firearm as he has already committed the felony by entering a store with the intention of robbing it. Therefore, you would be entitled to use deadly force.

    Thoughts on Virginia?



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    There are a number of 'laws' as in legal systems/traditions. One is English common law. The four elements of common law self-defense are;
    1. Be innocent of instigation.
    2. Be in reasonable fear of bodily harm.
    3. Use sufficient force only to deliver oneself from evil
    4. Attempt to withdraw.

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    Jim Thorpe wrote:
    Yes, although I am talking about even more clear cut cases.

    For instance, if you are in a convenience store in Virginia, and an assailant holds up the store while you are inside (with either a knife, firearm, or any other possible weapon), are you legally entitled to use deadly force? For instance, in this case engaging the assailant before any sort of verbal notification that you are armed.

    Texas law, for example, allows deadly force to stop a felony -- in the case I mentioned above, Texas law allows the use of deadly force regardless of whether that assailant has a firearm as he has already committed the felony by entering a store with the intention of robbing it. Therefore, you would be entitled to use deadly force.

    Thoughts on Virginia?

    It isn't cut and dried in Va.
    I am a great believer in minding my own business. Mostly because it comes back to bite you if you don't.

    In your example, if the fellow with the knife is not in the process of hurting anyone, depending on the Venue, it could be difficult to explain if you shot him.

    I read yesterday about a man that robbed a convenience store with a knife, Inside the store was a Secret Service agent agent getting coffee. He took a full pot of coffee and broke it over the guys head.

    Now...that's my kind of person!

    OH...
    As much as it pains me to say this, Doug gave pretty good guidelines!

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    peter nap wrote:
    I read yesterday about a man that robbed a convenience store with a knife, Inside the store was a Secret Service agent agent getting coffee. He took a full pot of coffee and broke it over the guys head.

    Now...that's my kind of person!
    I love stories of people using creative and non-traditional ways of defending themselves BUT as a coffee lover, that's a senseless tragedy. The poor coffee didn't deserve to die.
    James Reynolds

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    Instructor Bio - http://proactiveshooters.com/about-us/

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    peter nap wrote:
    Jim Thorpe wrote:
    Yes, although I am talking about even more clear cut cases.

    For instance, if you are in a convenience store in Virginia, and an assailant holds up the store while you are inside (with either a knife, firearm, or any other possible weapon), are you legally entitled to use deadly force? For instance, in this case engaging the assailant before any sort of verbal notification that you are armed.

    Texas law, for example, allows deadly force to stop a felony -- in the case I mentioned above, Texas law allows the use of deadly force regardless of whether that assailant has a firearm as he has already committed the felony by entering a store with the intention of robbing it. Therefore, you would be entitled to use deadly force.

    Thoughts on Virginia?

    It isn't cut and dried in Va.
    I am a great believer in minding my own business. Mostly because it comes back to bite you if you don't.

    In your example, if the fellow with the knife is not in the process of hurting anyone, depending on the Venue, it could be difficult to explain if you shot him.

    I read yesterday about a man that robbed a convenience store with a knife, Inside the store was a Secret Service agent agent getting coffee. He took a full pot of coffee and broke it over the guys head.

    Now...that's my kind of person!

    OH...
    As much as it pains me to say this, Doug gave pretty good guidelines!
    Right, but then it also comes down to whether you use of deadly force applies to a third person in Virginia. For instance, in some other states, such as Texas, if a third person is being threatened vitally, then it is within the law to use deadly force on the assailant.

    For instance, in this case of the store, if it were ME behind the register, and an assailant was brandishing a knife and demanding money in the register, I would think that in almost all states I would be allowed to use deadly force. So, back to the original example, if the assailant is brandishing a knife at the clerk and threatening to rob the store, I would think that I would be allowed to use deadly force since the life of the clerk is in jeopardy. (Furthermore, obviously one could draw your firearm and verbally announce that you are armed, yet a man with a knife can cover a distance of 21 feet in something like 1.5 or 2 seconds. That is why I am trying to understand the law, because in states like Texas you are under no obligation to verbally "warn" the suspect in the example I have included above.)

    Finally, in the case of the SS agent, the only reason he threw a pot of coffee was because he did not have his firearm on him during the encounter.



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    Jim Thorpe wrote:
    peter nap wrote:
    Jim Thorpe wrote:
    Yes, although I am talking about even more clear cut cases.

    For instance, if you are in a convenience store in Virginia, and an assailant holds up the store while you are inside (with either a knife, firearm, or any other possible weapon), are you legally entitled to use deadly force? For instance, in this case engaging the assailant before any sort of verbal notification that you are armed.

    Texas law, for example, allows deadly force to stop a felony -- in the case I mentioned above, Texas law allows the use of deadly force regardless of whether that assailant has a firearm as he has already committed the felony by entering a store with the intention of robbing it. Therefore, you would be entitled to use deadly force.

    Thoughts on Virginia?

    It isn't cut and dried in Va.
    I am a great believer in minding my own business. Mostly because it comes back to bite you if you don't.

    In your example, if the fellow with the knife is not in the process of hurting anyone, depending on the Venue, it could be difficult to explain if you shot him.

    I read yesterday about a man that robbed a convenience store with a knife, Inside the store was a Secret Service agent agent getting coffee. He took a full pot of coffee and broke it over the guys head.

    Now...that's my kind of person!

    OH...
    As much as it pains me to say this, Doug gave pretty good guidelines!
    Right, but then it also comes down to whether you use of deadly force applies to a third person in Virginia. For instance, in some other states, such as Texas, if a third person is being threatened vitally, then it is within the law to use deadly force on the assailant.

    For instance, in this case of the store, if it were ME behind the register, and an assailant was brandishing a knife and demanding money in the register, I would think that in almost all states I would be allowed to use deadly force. So, back to the original example, if the assailant is brandishing a knife at the clerk and threatening to rob the store, I would think that I would be allowed to use deadly force since the life of the clerk is in jeopardy. (Furthermore, obviously one could draw your firearm and verbally announce that you are armed, yet a man with a knife can cover a distance of 21 feet in something like 1.5 or 2 seconds. That is why I am trying to understand the law, because in states like Texas you are under no obligation to verbally "warn" the suspect in the example I have included above.)

    Finally, in the case of the SS agent, the only reason he threw a pot of coffee was because he did not have his firearm on him during the encounter.

    Like I said Jim, it isn't cut and dried here and Va is not... other states.
    In the scenario you gave, I can only tell you what I'd do in that case.

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    ProShooter wrote:
    peter nap wrote:
    I read yesterday about a man that robbed a convenience store with a knife, Inside the store was a Secret Service agent agent getting coffee. He took a full pot of coffee and broke it over the guys head.

    Now...that's my kind of person!
    I love stories of people using creative and non-traditional ways of defending themselves BUT as a coffee lover, that's a senseless tragedy. The poor coffee didn't deserve to die.
    I hope he at least got his own cup filled first.

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    sitedzn wrote:
    ProShooter wrote:
    peter nap wrote:
    I read yesterday about a man that robbed a convenience store with a knife, Inside the store was a Secret Service agent agent getting coffee. He took a full pot of coffee and broke it over the guys head.

    Now...that's my kind of person!
    I love stories of people using creative and non-traditional ways of defending themselves BUT as a coffee lover, that's a senseless tragedy. The poor coffee didn't deserve to die.
    I hope he at least got his own cup filled first.
    Additionally, just to add more info to the case, that same SS agent was slashed with the knife after or as he hit him with the coffee. Though I do not think the wound was that severe, but I know he was injured.

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    Jim Thorpe wrote:
    Yes, although I am talking about even more clear cut cases.

    For instance, if you are in a convenience store in Virginia, and an assailant holds up the store while you are inside (with either a knife, firearm, or any other possible weapon), are you legally entitled to use deadly force? For instance, in this case engaging the assailant before any sort of verbal notification that you are armed.

    Texas law, for example, allows deadly force to stop a felony -- in the case I mentioned above, Texas law allows the use of deadly force regardless of whether that assailant has a firearm as he has already committed the felony by entering a store with the intention of robbing it. Therefore, you would be entitled to use deadly force.

    Thoughts on Virginia?

    The most basic breakdown for lethal force in Virginia would be as follows:

    1. allowed to protect yourself if you reasonably fear for your life.
    2. allowed to protect family members if you reasonably fear for their life.
    3. allowed to protect a third party if you reasonably fear for their life.
    4. women are allowed to use lethal force if they reasonably fear that they are going to be raped.

    Take notice of the factthat, unlike Texas, you CANNOT use lethal force to protect property in Virginia.

    Some qualifiers would be that you have no duty to retreat, UNLESS you contributed to the situation leading to requiring deadly force. If someone attacks you out of the blue, no need to retreat. You get into a screaming match with someone, and he pulls a knife, you have to retreat.

    A good example I use in CHP classes to show how these interelate is one of an intruder in your home. Suppose you live alone. You're in your bedroom, and you hear a noise in the living room. You leave the bedroom to investigate, see an intruder, and shoot. Technically, you contributed to the situation, because you were safe in your room, and left to find the intruder, so you could be charged with murder (note, I said could, not would. prosecutorial discretion is a wonderful thing). However, ifyou stayed in your room and the intruder opened the door, it's clear self-defense.

    Now take the same scenario, except you are married withyour child sleeping in another room. You can't protect your child without leaving your room. So it's far more likely to be seen as a legal use of lethal force if you shoot the intruder in the home. Obviously, if the whole family sleeps on the third floor of a townhouse, and the intruder was on the first floor, some anti-gun prosecutor might still try to make a case that you could have protected your family just fine from the third floor, and the only reason for you to go downstairs instead of waiting upstairs with your family was to protect your stuff.

    [line]

    For the list of four items at the top, your scenario would clearly fall under number 3. HOWEVER, using lethal force to protect a third party is extremely risky if that person is not someone you know. If a friend is endangered, you probably have a pretty clear idea about who is the criminal in that situation. When you don't know any of the parties involved, you could end up shooting the wrong person, possibly even law enforcement, as was suggested in an earlier post.

    With regards to the "third party" situation, I can give examples of two things to think about on that subject. First, there is a gun store owner and firearms instructor in Utah(Larry Correia, the man that made famous the "HK, because you suck and we hate you" slogan)that incorporates a good deal of role playing scenarios into his classes. When third-party scenarios are done the person rarely lives if they get involved. Not knowing exactly what is going on, they tend to hesitate, while the "bad guy" knows that he is the bad guy,, and doesn't hesitate at all. The only students that consistently survived were the ones that sought cover, called the police, and acted as a good witness. Two, the magazine Combat Handguns, has a "It happened to Me" section. More than once, they've received letters from people that saw a scenario unfold, decided to not actively get involved, and then found out afterward that their impression of who was the "bad guy" was completely wrong (e.g. criminal in a suit and the detective in scuzzy clothes, etc.). I guess the big thing is to just figure out beforehand which situation you could live with more easily: having an innocent person die because you didn't do enough or having an innocent person die because you shot the wrong person.

    My personal rule of thumb with any third-party situation, where the third-party is not someone I know personally, is to find cover first. Unless I am so absolutely certain of what is going on that I'm willing to shoot one of them without any kind of verbal warning, I will just call the police and be a witness. I may yell that I've called the police if I think my cover is adequate to protect me from gunfire.

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    Great comments VT. Very informative. I am completely with you when it comes to these "less than clear cut" situations.

    I am personally not one to get involved in that manner if there are other options. That being said, and this is why I asked that example, if you are in a store that is being robbed, that is about as clear as it gets. You know who the criminal is; he is committing a felony; and failure to get involved could be risky for both you and the cashier. At that point, I would think that the law would respect that the safest course of action would be to use deadly force on the assailant.

    You could wait for the assailant to leave, but if the assailant is armed, and then orders all of the customers to the ground, you are in a very different situation and drawing your firearm unnoticed becomes much more difficult and dangerous.


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    I'm pretty sure that in Virginia, as in mostly the rest of the nation, you do not need to be in fear of loosing your life from an attack. Your perception of grave injury or bodily harm is enough to justify the use of deadly force.

    Also as has already been mentioned, there is no duty to retreat law in Virginia providing you have a legal right to be where you are and have not instigated or precipitated the activity.

    Your perception, and fear, of serious injury or worse is always open to question, so make sure you have your ducks in a row and act accordingly. However, if you are in very real danger, you most likely are not going to find the courts coming after you.

    As for issuing a warning to someone who has satisfied the three basic requirements to do you or someone else serious harm, not only is this not a legal requirement, but it is extremely dangerous and foolish. Once you see that weapon, you have two choices: do nothing, or respond with deadly force immediately. Hesitating gets good people dead. Criminals know this.. good people do not. It then comes down to whether or not the good guy has the where-with-all to carry out an immediate deadly response.

    Oh, the three basic requirements are: proximity, intent, means. Proximity. Is your assailant close enough to pose an imminent threat to your safely? Intent. Has your assailant display his intentions to you in a manner in which there is little to no doubt in your mind what his plans are? Means. Does he have the means to carry out his intentions - a weapon, overwhelming size/strength, partners, etc?

    This is an excellent topic and I really like to see it discussed on this forum. We can all learn things we either didn't know or knew in error from each other. This is all a good thing and could save someone much anguish or even their life.


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    Campaign Veteran skidmark's Avatar
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    SouthernBoy wrote:
    I'm pretty sure that in Virginia, as in mostly the rest of the nation, you do not need to be in fear of loosing your life from an attack. Your perception of grave injury or bodily harm is enough to justify the use of deadly force.

    Also as has already been mentioned, there is no duty to retreat law in Virginia providing you have a legal right to be where you are and have not instigated or precipitated the activity.

    Your perception, and fear, of serious injury or worse is always open to question, so make sure you have your ducks in a row and act accordingly. However, if you are in very real danger, you most likely are not going to find the courts coming after you.

    As for issuing a warning to someone who has satisfied the three basic requirements to do you or someone else serious harm, not only is this not a legal requirement, but it is extremely dangerous and foolish. Once you see that weapon, you have two choices: do nothing, or respond with deadly force immediately. Hesitating gets good people dead. Criminals know this.. good people do not. It then comes down to whether or not the good guy has the where-with-all to carry out an immediate deadly response.

    Oh, the three basic requirements are: proximity, intent, means. Proximity. Is your assailant close enough to pose an imminent threat to your safely? Intent. Has your assailant display his intentions to you in a manner in which there is little to no doubt in your mind what his plans are? Means. Does he have the means to carry out his intentions - a weapon, overwhelming size/strength, partners, etc?

    This is an excellent topic and I really like to see it discussed on this forum. We can all learn things we either didn't know or knew in error from each other. This is all a good thing and could save someone much anguish or even their life.


    Fear Alone is not Enough



    Commonwealth v. Sands, 262 Va. 724, 553 S.E.2d 733 (2001).


    Disparity of Force not a Defense by Itself
    Andre Barbosa v. Commonwealth Va. App. (2002 Unpublished)

    No Duty to Retreat When Doing a Lawful Act and Suddenly Attacked

    Decarlos Coleman v. Commonwealth, Va. App. (2002 Unpublished)

    What Is Great or Serious Bodily Injury?
    Commonwealth v. Bernard Payne, Va. App. (1996 Unpublished)

    All good reads on the various scenarios discussed above. All necessary to understand the difference between "common sense" and how the law looks at things.

    stay safe.

    skidmark




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    There are many stories of self-defense using lethal force, some of which have very negative outcomes for the defender.

    How about the use of lethal force by a LEO to protect him/herself during an arrest? Some of these can have very negative outcomes for the LEO. There is one pending the outcome of litigation now in Newport News. The Commonwealth's Attorney had already ruled the officer acted justifiably.

    http://www.dailypress.com/news/dp-lo...,5484452.story

    Settlement talks begin in death of man shot during 2007 arrest The mother of Robert L. Harper filed a $15 million lawsuit against Newport News, the police chief and officers. By Peter Dujardin |247-4749 October 23, 2008 NORFOLK - Attorneys for the city of Newport News began settlement talks Wednesday with lawyers representing the mother of a Newport News man killed in a confrontation with police in early 2007.

    But the discussion, which lasted about two hours, didn't lead to an agreement to end the mother's $15 million lawsuit against the city, the police chief, the officer who fired the fatal shots and other officers.

    The family of Robert L. Harper — who was shot eight times during an arrest — filed the suit in U.S. District Court in Norfolk this year. The suit contends that police were wrong to shoot Harper — who the suit says was unarmed — and that the Police Department failed to adequately train its officers.

    The city counters Harper, 38, was acting in a threatening manner, he refused to take his hand out of his right pocket and that he lunged at police trying to arrest him.

    Commonwealth's Attorney Howard Gwynn, in an in-depth review after the shooting, found the shooting justified and declined to press charges. City officials also said Matthew Overton — the officer who shot Harper — didn't violate any city policy.

    Police went to arrest Harper at a house on 25th Street, near Chestnut Avenue in the city's southeast, about 9:20 p.m. Feb. 18, 2007. They were taking him into custody after his jail bond was revoked after repeated traffic charges.

    A five-day trial was scheduled to begin in the civil suit Wednesday, but that was delayed because of another case. In the meantime, the two sides sat down. "I am hoping that something can be worked out," U.S. District Judge Jerome B. Friedman said before the sides met.

    The settlement talks began a few hours after Friedman denied a motion by Overton's attorney to throw out the case in a summary judgment. Friedman then heard a similar motion from the city and the Police Department. The judge said he would take the city's motion "under advisement" and make a ruling later.

    Robert Harper's mother, Shirl D. Barkley; Police Chief James Fox; and Overton attended the discussion, as did attorneys for the various parties.

    Adam H. Lotkin, a Virginia Beach attorney for Barkley, said that his side was open to a settlement but that "we'll be prepared (for trial) in the event it's not. ... There are facts in dispute, it's a hotly contested case and a life is gone."

    By late afternoon, Allen L. Jackson, of the city attorney's office, said the talks "did not produce a settlement."

    "Neither did the talks break down completely," he said, adding that talks could still resume again. In the meantime, he said, a new trial date will be set.

    The suit argues that Harper was unarmed, that Overton wasn't justified in shooting him and that other officers should have intervened to stop him from shooting. The suit also asserts that there were nonlethal options available at the scene, including a shotgun that shoots beanbags. But another officer left the scene with that gun before Harper was shot.

    According to Gwynn's report that cleared officers, a bail enforcement officer who was unsuccessful at taking Harper into custody had told police — based on what she was told by a woman in the apartment — that Harper might have a box cutter.

    Harper's former girlfriend said Harper was "sad and depressed," and the bail enforcement officer said he appeared "agitated" when she was trying to arrest him.

    Gwynn's report describes an increasingly tense scene as officers tried to get Harper to comply with their orders.

    Officers tried to persuade Harper to come with them, but he refused and kept a hand hidden in a pocket, the report said.

    During a conversation with Harper, Gwynn's report said, Harper led officers to think that he might have had a gun.

    When Harper made a sudden "lunge" forward, the report said, Overton fired nine shots, reloaded and fired two more, saying he needed to keep firing because Harper kept moving. Harper was struck eight times.

    No box cutter or gun was found on him.


    Key dates Feb. 18, 2007:[/i] Robert L. Harper, 38, of Newport News is shot eight times during a confrontation over an arrest in a house on 25th Street.

    June 25: [/i]Commonwealth's Attorney Howard Gwynn concludes that Harper's shooting was a justified use of force and declines to press charges.

    Feb. 13, 2008:[/i] Harper's mother files a $15 million federal lawsuit against the city of Newport News, the Police Department, the police chief and officers at the scene.

    Wednesday: [/i]A trial is set to begin in the lawsuit. Instead, the two sides meet to hammer out a settlement. No agreement has been reached.

    A law-abiding citizen should be able to carry his personal protection firearm anywhere that an armed criminal might go.

    Member VCDL, NRA

  19. #19
    Moderator / Administrator Grapeshot's Avatar
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    Post imported post

    vtme_grad98 wrote:

    The most basic breakdown for lethal force in Virginia would be as follows:
    1. allowed to protect yourself if you reasonably fear for your life.
    2. allowed to protect family members if you reasonably fear for their life.
    3. allowed to protect a third party if you reasonably fear for their life.
    4. women are allowed to use lethal force if they reasonably fear that they are going to be raped.

    Add to protect yourself or another from serious bodily harm to all.

    Yata hey
    You will not rise to the occasion; you will fall back on your level of training. Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

  20. #20
    Administrator John Pierce's Avatar
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    Post imported post

    Jim Thorpe wrote:
    Does anyone have a link or a description to the use of deadly force in Virginia (by a civilian)? I am only familiar with states like Texas, and was wondering how different the law was here in Virginia.
    Here is a good place to start ...

    http://www.vcdl.org/pdf/Virginia-self-defense-cases.pdf



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